DOCKET NO TARRANT COUNTY, TEXAS 9 (SOAH DOCKET NO ) 5 BEVERAGE COMMISSION

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1 DOCKET NO IN RE V & T BLUE FUSION INC. BEFORE THE TEXAS dlbla FUSION 8 PERMIT NOS. MB & FB ALCOHOLIC 9 TARRANT COUNTY, TEXAS 9 (SOAH DOCKET NO ) 5 BEVERAGE COMMISSION PROPOSAL FOR DECISION 0 R D E R CAME ON FOR CONSIDERATION this 2oth day of June, the above-styled and numbered cause. - After proper notice was given, this case was heard by Administrative taw Judge Michelle Kallas. The hearing convened on March 2,2006, and had to be continued until April 12,2006. OR April 12,2006 the hearing was re-convened and adjourned on the same day. The Administrative Law Judge made and filed a Proposal For Decision containing Findings of Fact and Conclusions of Law on May 25, This Proposal For Decision (attached hereto as Exhibit "A")), was properly served on all parties who were given an opportunity to file Exceptions and Replies as part of the record herein. AS of f his date no exceptions have been filed. The Assistant Administrator of the Texas Alcoholic Beverage Commission, after review and due consideration of the Proposal for Decision, Transcripts, and Exhibits, adopts the Findings of Fact and Conclusions of Law of the Administrative Law Judge, which are contained in the Proposal For Decision and incorporates those Findings of Fact and Conclusions of Caw into this Order, as if such were fully set out and separately stated herein. All Proposed Findings of Fact and Conclusions of Law, submitted by any party, which are not specifically adopted herein are denied. IT IS THEREFORE ORDERED, by the Assistant Administrator of the Texas Alcoholic Beverage Commission, pursuant to Subchapter B of Chapter 5 of the Texas Alcoholic Beverage Code and 16 TAC 531.I, of the Commission Rules, that Respondent's pernits be cancelled, pursuant to ) of the Code. This Order will become final and enforceable on July 11,2000, unless a Motion for Rehearing is filed before that date. By copy of this Order, service shall be made upon all parties by facsimile and by mail as indicated below.

2 SIGNED on this 20th day of June, 2006, at Austin, Texas. On Behalf of the Administrator, ene Fox, ~ssistanf~dministrator Alcoholic Beverage Commission The Honorable Michelle Kallas Administrative Law Judge State Ofice of Administrative Hearings VIA FACSIMILE V & T Blue Fusion Inc. d/b/a Fusion RESPONDENT 4334 Lemrnon Ave. Dallas, TX CERTIFlED MAIL NO. RETURN RECEIPT REQUESTED Tim Griffith ATTORNEY FOR PETITIONER VIA FACSIMILE Licensing Division Dallas District Office

3 State Office of Administrative Hearings Slirlia Bailey Tavlor Chief :2dminist1.ntive Law J~icFge Jeannene Fox, Assistant Administrator Texas Alcoholic Beverage Commission 5806 Mesa, Suite 160 Austin. Texas Dear ims. Fox: RE: Docket # TABC VS. V & T FUSION WC., D/B/A FUSION Please find enclosed a PROPOSAL FOR DECJSTON in this case. It contains my recommendation and underlying rationale. Exceptions and replies may be filed by any party in accordance with 1 TEX. ADMIN. CODE I55,59(c), a SOm rule \vhicl*~ may be found at wv,soah.state.tx.~~s. MWsr Enclosure Michelle Kallas Administrative Law Judge cc: Timothy Griffith, Agency Council for Texas Alcoholic Beverage Con~rnission, Via Fax, V & T Fusion, Respondent, Via Mail I J i'- -- -_--- - : ;,, i 4 - i I Forpst Pork Roarl. Snire 150A 4 Dallas. T~qsns?5 ZL 2->---,. =!I : j (114)956-H61h Fax(

4 SO AN DOCKET NO TEXAS ALCOHOLIC BEVERAGE!i BEFORE THE STATE OFFICE COMMISSION, 8 Petitioner 5 5 V. 5 OF a s V & T BLUE FUSION INC,, 6 drda FUSION, Respondent 6 ADMINISTRATWE HEARINGS PROPOSAL FOR DECISION The Texas Alcoholic Beverage Commission (TABC) staff (Petitioner) brought this action seeking cancellation of the permit held by V & T Blue Fusion, Inc. {Respondent), alleging that Respondent knowingly possessed uninvoiced alcoholic beverages on the licensed premises, En violation of the Texas Alcoholic Beverage Code (Code). The Administrative Law Judge (ALg - recommends the Respondent's permit be canceled. 1. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY TABC has jurisdiction over this matter under TEX. ALCO. BEY. CODE ANN. ch , OR, and TEX. ADMlN. CODE ch I.50. The State Office of Administrative Hearings (SOAH) has jurisdiction over all matters relating to conducting a hearing in this proceeding. including the preparation of a proposal for decision with proposed findings of fact and conclusions of law, pursuant to TEX. GOV'T CODE ANN. ch, On February 9, 2006, Petitioner issued its notice of hearing directed to Respondent. On March 2,2006, the case was continued to April 12,2006, at 1 :00 p.m. On April a hearing convened before SOAH ACJ Michelle Kaltas at 6333 Forest Park Road, Suite 150-A, DaIlas, Dallas Comty, Texas. Petitioner was represented at the hearing by Timothy Gri fith, TABC Staff Attorney. Respondent appeared pro se. The record closed on April 1 2, /

5 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE 2 A. Applicable Law No holder of a mixed beverage permit may knowingly possess or permit to be possessed on the licensed premises any alcoholic beverage which is not covered by an invoice from the supplier from whom the alcohoiic beverage was purchased. T EX. ALCO. BEV. CODE m. $ The law requires the Commission or administrazor to cancel the permit of any permittee found, after notice and hearing, to have violated this provision. TEX. ALCO. BEV. CODE ANN (d). - Invoice is defined as an instrument issued by the seller of the alcoholic beverages to a permittee. An invoice shall be issued in original and one copy in consecutive numbered order, showing the date of the sale or distribution, the purchaser and his address, the quantity, brand and class of alcoholic beverages sold, and the total price of each brand and class, The invoice or a copy of the jnvoice shall be delivered to the permittee with the seeiet maintaining a copy of the invoice. Each invoice shall be kept on the licensed premises for two years and be made available for i~lspection upon reasonable request by a representative of the Commission. XX. ADM~N, CODE ch (h). B. Evidence I. Petitioner's Evidence TABC agent Anthony Keel testified at the hearing that he conducted an inspection of Respondent's premises located at 4334 Lemon Avenue, on October 22,2005. 'Upon inspection of a locked liquor closet in the kitchen area, Agent Keel Iocated numerous bottles of alcol~olic

6 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE 3 beverages1 that did not have local distributor stamps affixed to the bottles. Agent Keel asked Viet Nguyen, president of V & T Blue Fusion, where the alcoholic beverages had been purchased and asked to see the invoice. Mr. Nguyen informed Agent Keel that the alcoholic beverages had been purchased from a liquor store and that there were no invoices, Agent Keel testified that a receipt for some of the "illicit" alcoholic beverages was found attached to a box. The receipt indicated that the alcoholic beverages had been purchased from. the retailer Goody Goody. Agent Keel stated that tbe receipt was not an invoice from a distributor which is required to include the location's permit number, address. method of payment, local distributor numbers, and a list of each individual item. It was merely a receipt which could be obtained by anyone making a purchase from a retailer. 2. Rcspondent's Evidence Tha Le testified that he and Viet Nguyen are partners in V & T Blue Fusion, Inc. Mr. Le testified that they were in an-ears with their distributor and were working to pay off the debt so that they would be able to purchase alcohol, He testified that they had contracted for a rehearsal dinner to take place on October 21,2005. and needed liquor and wine for the dinner. Mr. Le was worried that they were going to mn out of time and would not be able to acquire the needed alcoholic beverages. He instructed his brothers to go out and purchase the alcohol for the event. Mr. Ee admitted that he hew he was breaking the law hut stated that he felt pressured to meet his contractual obligations. C. Discussion and Recommendation As the l~older of a mixed beverage permit. Respondent may not knowinglypossess. or permit 1 - bottles of tequila. two bo~les The alcoholic beverages consisted of five bottles ofvodka, eight bottles of wine, nvo bonles oftriple sec, two of scotch. one bottle ohgin. one bottle of whiskey. and one bottle of rum.

7 -. SOAH DOCKET NO PROPOSAL FOR DECISION PAGE 4 to he possessed. any alcoholic beverages on the licensed premises which are not covered by an invoice from the supplier from wllorn the alcoholic beverages were purchased. T EX. ALCO. BEV. CODE ANN. $ Numerous bottles of alcoholic beverage located by Agent Keel on Respondent's premises did not have local distributor stamps affixed to them and were not covered by invoices from suppliers. Upon questioning, Mr. Nguyen informed Agent Keel tl~at the alcoholic beverages had been purchased from a liquor store and tbat there wete no invoices for them. The receipt found in the back of the premises attached to a box was not an invoice for the alcoholic beverages, as defined by $ (h) of the Rules because it did not inciude the permit number, the address of the permit holder, and the local distributor numbers. Mr. Le admitted that alcollolic beverages were purchased from a liquor store because he was experiencing financial difficulties with his supplier. He acknowledged that he knew he was breaking the law but felt he had no other choice in order to meet his contractual obligations. Petitioner requested that Respondent's permit be cancelled. The evidence on the record is sufficient to establish that Respondent. the holder of a mixed beverage permit, knowingly possessed the uninvoiced alcoholic beverages in violation of of the Code. According to (d) of the Code, canceliation of the permit is the penalty for this vioiation. Therefore, the ALS recommends tbat Respondent's permit be canceled FINDINGS OF FACT 1. V & T Blue Fusion, Inc. (Respondent) holds a Mixed Beverage Permit, MB and a Food and Beverage Certificate, FB , issued by the Texas Alcoholic Beverage Commission (Petitioner) for the premises located at 4334 Lemmon Avenue. Dallas. DaIlas County, Texas. 2. On October 22,2005, TABC Agent Anthony Keel conducted an inspection of the licensed premises. - * J. I11 a cabinet in the kitchen area. Agent Keel located numerous bottles of alcoholic beverages

8 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE 5 without local distributor stamps affixed to them. 4. Viet Nguyerc, informed Agent Keel that the aicohofic beverages were purchased from a liquor store and were not covered by invoices. 5. Agent Keel seized and photographed the bottles. 6. Respondent knowingly possessed aicoholic beverages on the licensed premises which were not covered by invoices from the suppliers from whom the alcohoeic beverages were purchased. 7. On February 9, 200G, Petitioner sent a notice of hearing by certified mail, return receipt requested, to Respondent's nailing address as listed in the Commission's records, informing Respondent of the date, time, and place of the hearing, the statutes and rules involved, and the legal authorities under which the hearing was to be held. 8. The hearing on the merits convened April at the State OEce of Administrative Hearings, 6333 Forest Park Road, Suite 150-A, Dallas, Texas 75235, before ALJ Michelle Kallas. Petitioner was represented by Timothy Gri ffith. attorney Respondent appearedpro se. The record closed on April 12,21306, IV. CONCLUSFONS OF LAW 1. The Texas Alcoholic Beverage Commission has jurisdiction over this matter pursuant to TEX-ALCO. BEY. CODE ANN. ch. 5 and fj$ 11.61,2R.06,32.08, and TEX. ADMIN. CODE ch SOAH has jurisdiction to conduct the hearing in this matter and to issue a proposal for decision containing findings of fact and conclusions of law pursuant to TEX. GOV'T CODE ANN. ch J. Proper and timely notice of the hearing was effected on Respondent pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch TEX. (TAC) and 16 TAC ADMIN. CODE 4. Respondent knowingly possessed. or permitted to bc possessed, on the licensed premises alcoholic beverages which were not covered by an invoice from the supplier from whom the alcoholic beverages were purchased. TEX. ALCQ. BEV. CODE ANN Respondent's permits should be canceled. TEX. ALCO. BEV. CODE ANN Id).

9 -.- SOAH DOCKET NO. 4% PROPOSAL FOR DECISION PAGE 6 SIGNED May 25, MICHELLE KALLAS ADMINISTRATIVE LAW JUDGE STATE OFFICE OF ADMJMSTRATTVE HEARINGS

10 SERVICE LIST AGENCY: CASE: TEXAS ALCOHOLlC BEVERAGE COMMISSION TABC vs. V & T Blue Fusion Inc. d/b/a Fusion DOCKET NUMBER: AGENCY CASE NO: Timothy Griffith Staff Attorney 8700 Stemmons F y. Ste. 460 Dallas, Texas Telephone No: (21 4) AGENCY COUNSEL VIA FAX V & T Blue Fusion Inc. dhla Fusion 4334 Lernrnon Ave. Dallas, TX 752 t RESPONDENT VIA REGULAR MAIL as of May 25,2006